Fitzsimons v Fradella2011 NY Slip Op 30875(U)

March 30, 2011Supreme Court, Nassau County

Docket Number: 4049/09Judge: Ute W. Lally

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SCAJSHORT FORM ORDER

SUPREME COURT - STATE OF NEW YORKCOUNTY OF NASSAU - PART 3

Present: HON. UTE WOLFF LALLYJustice

CHRISTINE FITZSIMONS,

ND, JVG-Motion Sequence #2, #3Submitted February 7, 2011

Plaintiff

-against- INDEX NO: 4049/09

FRANCINE D. FRADELLA, D.O., MICHAEL E.KHALlFE , M.D., NASSAU SURGICALASSOCIATES, P .C., CARLENE MONDESIR

, and WINTHROP-UNIVERSITYHOSPITAL ASSOCIATION

Defendants.

The following papers were read on these motions for summary judgment:

Notice of Motion and Affs..........................................................Aff in Opposition..................................................................... ..4&5Affs in Reply............................................................................... .6&7Memora nd um of Law................................................................ ..Second Notice of Motion and Affs...............................

Affs in Opposition....................................................................... 13-Affs in Reply 1"1"'" 1..1""""""""'" ........................................ ........ 18-

This motion by defendants, Michael E. Khalife, M. , and Nassau Surgical

Associates , P. C. for an Order: (1) pursuantto CPLR 3212(a) granting them leave to file and

serve the instant motion for summary judgment within 60 days of service of plaintiffs last

supplemental Bill of Particulars , detailing new allegations, but subsequent to the expiration

of the Court's 60 day deadline upon good cause shown; and (2) pursuant to CPLR 3212( e),

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granting partial summary judgment in their favor dismissing plaintiff's claims which exceed

the scope of defendants ' legal duty to the plaintiff including her claim that the defendants

preoperatively failed to obtain her informed consent and medical history and plaintiff's claim

that defendants failed to perform various post-operative acts is granted.

This motion by defendants, Carlene Mondesir, M. D. and Winthrop University

Hospital Association for an Order, pursuant to CPLR 3212 , granting summary judgment in

their favor dismissing the plaintiffs complaint in its entirety as asserted against them is

denied.

This is a medical malpractice action in which the plaintiff, Christine Fitzsimons

Fitzsimons ) alleges that she sustained severe and permanent personal injuries as a

result of defendants ' negligence during her treatment for an ovarian cyst. f-s best as can

be determined from the papers herein , the facts are as follows:

On September 17 , 2007 , at the referral of her primary care physician due to a

urinary tract infection , plaintiff was first seen by defendant Francine D. Fradella , D. O. (" Dr.

Fradella ). Dr. Fradella referred the plaintiff for a pelvic sonogram and bloodwork

prescribed antibiotics and sent a urine culture to be analyzed. Subsequently, on October

, 2007 , plaintiff returned to Dr. Fradella s office where she was seen by the physician

assistant who noted complaints of persistent urinary burning. Apparently, the urine culture

sent on September 17 , 2007 , could not be found at the laboratory, Consequently, the

culture was repeated. On December 20 2007 , plaintiff returned to Dr. Fradella s office at

which time Dr. Fradella charted that a sonogram taken on December 6 , 2007 revealed a

left ovarian cyst that was not present on the prior sonograms. In response , Dr. Fradella

recommended a follow up sonogram in January with possible treatment with birth control

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pills if the cyst persisted. On January 28 2008 , plaintiff returned to Dr. Fradella to review

the results of the follow up sonogram taken on January 16 , 2008. This sonogram revealed

a slight increase in size of the cyst from the prior sonogram. Consequently, Dr. Fradella

scheduled plaintiff for a laparoscopic ovarian cystectomy, and prescribed birth control pils

and a repeat sonogram prior to surgery.

On February 27 2008 , plaintiff underwent a repeat pelvic sonogram which found no

significant interval change in the left ovarian cyst from the prior sonogram.

The 20 year old plaintiff was admitted to Winthrop University Hospital ("Winthrop

or "Hospital") on March 5, 2008 for a laparoscopic cystectomy by defendant Dr. Fradella

her private attending gynecologist who had voluntary staff privileges at Winthrop.

Defend , Carlene Mondesir , M. D. ("Dr. Mondesir ) was the senior gynecological

resident and a Winthrop employee on the date of plaintiffs procedure. Upon presentation

to the Hospital , Dr. Mondesir took plaintiff's past medical history, while another resident

performed a physical examination. Dr. Fradella then obtained surgical consent while

plaintiff was in the operating room holding area , where the consent form listed the potential

procedures , including laparoscopic removal of an ovarian cyst, possible oophorectomy

(surgical removal of ovaries) and possible laparotomy (surgery opening the abdomen).

Plaintiff signed this form and Dr. Fradella countersigned it at that time. The laparoscopic

assisted cystectomy was started by Drs. Fradella and Mondesir. Up until this point in time

neither Dr. Khalife nor any other physician associated with him , treated , spoke with

diagnosed any condition or even met with the plaintiff.

Drs. Fradella and Mondesir began the procedure by attempting to place a HUMI

manipulatory intra-vaginally, but this was abruptly changed to an Acorn Manipulator after

[* 3]

it was noted that the hymen was intact. It is unclear as to whether Dr. Fradella or Dr.

Mondesir performed this action. Dr. Fradella then made an incision in the umbilcus and

placed a trocar with lighting apparatus in the peritoneal cavity for visualization. Insufflation

or the introduction of gas , in the pelvic cavity, was performed to allow visualization of the

pelvis at which point Dr. Fradella noted large areas of bowel adhesions to the interior

sidewall of the pelvis bilaterally. Dr. Fradella then made two incisions on the right and left

lower abdomen and used blunt trocars for visualization on the left side and a blunt probe

on the right side. In using a blunt probe , Dr. Fradella noted adhesions completely fixing the

omentum to the peritoneum and ranging from the left side of the pelvis all the way around

to the right. While Dr. Mondesir was holding the camera and the adhesions were visible

on the screen, Dr. Fradella performed lysis of the adhesions by both blunt and sharp

dissection , releasing the omentum , which was removed from the pelvis.

Plaintiff was placed in a further Trendelenburg position , where Dr. Fradella

visualized diffuse extensive bowel adhesions which made visualization of the uterus or

ovaries impossible. Dr. Fradella then stopped the procedure and requested a surgical

consult, ultimately being advised that defendant Michael E. Khalife, M. D. ("Dr. Khalife ) was

available. Dr. Khalife then entered the operating room , where Dr. Fradella informed him

that plaintiff had unexpected adhesions of the bowel and omentum which obstructed

visualization of the ovaries.

According to the Hospital records , when Dr. Khalife arrived at the operating table

he assumed the position of right handed surgeon. Dr. Fradella stood on the plaintiffs left

side and took over Dr. Mondesir s job of holding instruments. Dr. Mondesir stepped away

from the operating room table for the entire period that Dr. Khalife performed surgery

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the plaintiff with assistance provided by Dr. Fradella.

At this point in the procedure , a fourth incision and trocar port was introduced on

plaintiffs right abdomen , to increase visualization , although both Drs. Khalife and Fradella

deny placing that incision or trocar. Dr. Khalife then , using blunt dissection , performed lysis

of the bowel adhesions on the left side of plaintiff's abdomen to release the bowel and allow

visualization of the left ovary and fallopian tube. After freeing the bowel , Dr. Fradella

visualized the ovary in the left lower quadrant , which did not appear to be "normallooking,

being encased in a large cystic mass. Dr. Khalife then , with Dr. Fradella s assistance

dissected and excised the abscessed cystic mass of the left side of plaintiff' s abdomen that

he described as acutely infected and inflamed , but did not remove it. Dr. Khalife , at that

. point, left the operating room and the remainder of the procedure was performed by Drs.

Fradella and Mondesir.

Drs. Fradella and Mondesir then took approximately one hour to remove the ovary

and tubes from plaintiff's pelvic cavity. The first attempt was through the periumbilicial port

but being unable to do so , Drs. Fradella and Mondesir then extended the incision in the

right lower quadrant and , after further manipulation , were able to remove the ovary and

tube via an Endobag. The trocars were removed under visualization and hemostasis was

assured. The surgical site was then closed and plaintiff was sent to the recovery room.

The Winthrop records contain a postoperative note authored by Dr. Mondesir at 4:30

, which notes a slightly distended abdomen , sinus tachycardia , a heart rate of 1 04 , and

a blood pressure of 120/70. An ECG performed on March 5 , 2008 , the date of plaintiffs

procedure , at7:09 p. m. revealed a "Borderline ECG" , sinus tachycardia , with a possible left

atrial enlargement. According to the records , Dr. Mondesir was the only physician who

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examined plaintiff postoperatively on March 5 , 2008.

On March 6 , 2010 , at 6:20 a. , Dr. Mondesir then again examined plaintiff and

noted complaints of abdominal pain and tenderness , with a heart rate of 95 and fallng,

hypotensive blood pressure levels of 107/64. Dr. Mondesir then ordered continued pain

management and an advanced diet as tolerated. Also on March 6 , 2010 at what appears

to be " " or4 p. , Dr. Fradella examined the plaintiff and noted mild abdominal distension

while questioning the etiology of the cyst for "future treatment."

On March 7 , 2010 , Dr. Mondesir again examined plaintiff and noted an "episode of

tachycardia" the night before with positive abdominal distension and abdominal tenderness.

Dr. Mondesir also determined plaintiff had a temperature of 99. , a heart rate of 116 , and

a low blood pressure of 118/73. Dr. Mondesir then ordered continued pain management

and a regular diet while "encouraging ambulation. " An ECG performed on March 7 , 2010

at 9:52a.m. revealed an "abnormal ECG" (as opposed to a "Borderline ECG" noted on

March 5 , 2010) with sinus tachycardia and possible " inferior ischemia." On March 7, 2010

in an untimed note , Dr. Fradella examined plaintiff and noted gaseous abdominal distension

with positive flatus and toleration of a regular diet. Dr. Fradella then discharged plaintiff

with instructions to follow up at her office.

Dr. Fradella s next contact with plaintiff was on March 10, 2008, at her office

although plaintiff and her family claim that they left Dr. Fradella several telephone

messages on March 8 , 2008 and March 9 , 2008.

At the March 10 , 2008 visit , plaintiff reported not feeling well since the surgery,

including swellng and a low grade fever. Examination revealed low blood pressure

106/70 , positive flatus , positive bowel movement and positive bowel sounds in all four

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quadrants. Plaintiff denied nausea or vomiting and reported tolerating a regular diet. Dr.

Fradella then referred plaintiff for a CT scan to check for infection and perform a CBC and

metabolic panel. She prescribed antibiotics and encouraged plaintiff to drink water and

ambulate.

On March 11 , 2008 , plaintiff again presented to Dr. Fradella s office with her mother

and aunt. Dr. Fradella again directed a CT scan to be performed to determine whether

there was an infection. Plaintiff, however, instead went to the Emergency Room at North

Shore University Hospital at Manhasset ("North Shore

At North Shore , plaintiff again became tachycardic and was admitted to the ICU.

After undergoing exploratory surgery, plaintiff was diagnosed with a perforated terminal

ileus and fecal peritonitis. During the course of a nine day admission , plaintiff unde ent

two surgical procedures at North Shore to repair the perforation and remove the fecal

matter from her abdomen.

It remains unclear to this Court as to who defendant Nassau Surgical Associates

C. ("Nassau Surgical") is in this matter. Having said that, it is clear that said defendant

is represented in this action by the same counsel as defendant Michael E. Khalife , M.

By separate motions , defendants , Dr. Khalife and Nassau Surgical , and , defendants

Dr. Mondesir and Winthrop, each seek summary judgment dismissal of the plaintiffs

medical malpractice claims as asserted against them. In addition , Dr. Khalife and Nassau

Surgical also seek leave to file and serve the instant motion for summary judgment within

60 days of service of plaintiff' last supplemental Bill of Particulars, detailing new

allegations , but subsequent to the expiration of the Court's 60 day deadline upon good

cause shown. Dealing first with the timeliness of Dr. Khalife and Nassau Surgical's motion

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at hand , this Court herewith grants said defendants ' application to file and serve the instant

motion for summary judgment.

Pursuantto CPLR 3212(a), a party may not makea summary judgment motion more

than 120 days after filing a Note of Issue unless it obtains " leave of court on good cause

shown. " The term "good cause" under CPLR 3212(a) means "a satisfactory explanation

for untimeliness rather than simply permitting meritorious non-prejudicial filings , however

tardy (Bril v City of New York 2 NY3d 648). However, local Nassau Court rules shorten

this deadline to 60 days after the filing of the Note of Issue. When local court rules

promulgated by the Supreme Court shorten the deadline to file a summary judgment

motion to 60 days as a case management tool

, "

courts have the discretion to disregard a

self- imposed deadline for filing a summary judgment motion to accommodate a genuine

need" (Hernanndez ex. reI. Hernandez v 620 West 189 Ltd. Partnership, 7 Misc. 3d 198

(Sup. Ct. New York 2005)). This "genuine need " however , does not mean "good cause as

contemplated by CPLR 3212(a)" and it may include entertaining the merits of a belated

motion if filed "within the 120 day ceiling and , consistent with a court's traditional exercise

of discretion , the absence of prejudice to the party opposing the belated motion (ld.

199).

Moreover, when there is discovery outstanding since the filing of the Note of Issue

a party demonstrates "good cause" for their delay in filing a motion for summary judgment

when this late discovery is germane to the party s motion (Bril v City of New York, supra

at 655; Gonzalez v 98 Mag Leasing Corp. 95 NY2d 124 , 129; Sclafani v Washington Mut.

36 AD3d 682).

[* 8]

In this case, this Court's Preliminary Conference Order directed the plaintiff to

provide separate and distinct Bills of Particulars as to each defendant within "30 days" of

all defendant depositions , or August 2 2010. On August 4 2010 , defendants , Dr. Khalife

and Nassau Surgical , sent plaintiff's counsel correspondence demanding plaintiff provide

various outstanding discovery, including this Supplemental Bil of Particulars , pursuant to

this Court's Order. On August 5 , 2010 , plaintiff instead filed the Note of Issue and

Certificate of Readiness , forcing the defendants to move to vacate the Note of Issue and

inter alia extend defendants ' time to file dispositive motions for 60 days from the date

plaintiff provided the outstanding discovery. Subsequently, on September 28 2010 , plaintiff

served , by regular mail , a second supplemental Bill of Particulars as to Dr. Khalife and

Nassau Surgical , with the effective date of service being October 3 , 2010. In these

documents , plaintiff alleged two new theories of recovery against the defendants including

Khalife s alleged failure to review the plaintiff's medical history prior to being called into the

operating room , and that Khalife and Nassau Surgical failed to conduct a post operative

examination.

In light of the fact that these new allegations are obviously germane to defendants

motion for summary judgment and should have been provided pursuant to this Court'

Order by August 2 , 2010 , and further, in light of the fact that plaintiff has failed to

demonstrate any prejudice with respect to the defendants

' "

belated" motion , this Court

herewith grants defendants ' application to make the instant summary judgment motion.

Turning next to the merits of defendants ' motions , it is noted that "(o)n a motion for

summary judgment pursuant to CPLR 3212 , the proponent must make a prima facie

showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

[* 9]

demonstrate the absence of any material issues of fact" (Sheppard- Mobley v King,

AD3d 70 , 74 affd. as modified 4 NY3d 627 citing Alvarez v Prospect Hosp. 68 NY2d

320 324; Winegrad v New York Univ. Med. Ctr. 64 NY2d 851 853). "Failure to make such

prima facie showing requires a denial of the motion , regardless of the sufficiency of the

opposing papers (Id). Once the movant's burden is met , the burden shifts to the opposing

party to establish the existence of a material issue of fact (Alvarez v Prospect Hosp.

supra). The evidence presented by the opponents of summary judgment must be accepted

as true and they must be given the benefit of every reasonable inference (Demishick v

Community Housing Management Corp. 34 AD3d 518).

The requisite elements of proof in a medical malpractice action are a deviation or

departu e from accepted practice and evidence that such departure was a proximate cause

of injury or damage (Ramsay v Good Samaritan Hosp. 24 AD3d 645 , 646; Thomason v

Orner 36 AD3d 791; DiMitri v Monsouri 302 AD2d 420). " In a medical malpractice action

the party moving for summary judgment must make a prima facie showing of entitlement

to judgment as a matter of law by showing the absence of a triable issue of fact as to

whether defendant physician (and/or hospital) were negligent" (Taylor v Nyack Hospital, 18

AD3d 537). Thus , a moving defendant doctor or hospital has "the initial burden of

establishing the absence of any departure from good and accepted medical malpractice

or that the plaintiff was injured thereby (Id. ; Chance v Felder 33 AD 3d 645 quoting

Willams v Sahay, 12 AD3d 366 , 368).

The elements of a malpractice action are often litigated on the basis of affidavits

presented on a motion for summary judgment. In opposition , however, the plaintiff must

submit evidentiary facts or materials that rebut the prima facie showing that the physician

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was not negligent in treating the patient, so as to demonstrate the existence of a triable

issue of fact (Alvarez v Prospect Hasp. , supra; Baez v Lockridge 259 AD2d 573; Juba v

Bachman 255 AD2d 492). General allegations of malpractice that are merely conclusory

in nature and not supported by competent evidence tending to establish the essential

elements of the claim are insuffcient to defeat the motion (Alvarez v Prospect Hasp. , supra;

Holbrook v United Hasp. Medical Center 248 AD2d 358). Instead , the plaintiff is required

to present some statement of expert medical opinion to demonstrate the viability of a theory

of liability (Alvarez v Prospect Hasp. , supra; Straton v Orange County Dept. of Social

Services 217 AD2d 576). For the sake of clarity, this Court wil address each motion

separately and in turn.

Dr. Khalife and Nassau Surqical's Motion

Notably, plaintiffs ' opposition to defendants ' Dr. Khalife and Nassau Surgical'

motion is limited to defendants ' application for leave to file a late motion for summary

judgment. Plaintiff does not oppose the substantive motion for summary judgment

dismissing plaintiff's medical malpractice claims as asserted against them. Nevertheless

even where there is no opposition to a motion for summary judgment , the Court is not

relieved of its obligation to ensure that the movants have demonstrated their entitlement

to the relief requested (see Zecca v Ricciardell 293 AD2d 31).

In that regard , it is noted that as against defendant Dr. Khalife and Nassau Surgical

plaintiff alleges the following: Dr. Khalife failed to obtain plaintiff's informed consent for the

subject procedure; Dr. Khalife failed to obtain a medical history prior to scrubbing in

intraoperatively at Dr. Fradella s request; and Dr. Khalife failed to undertake various acts

postoperatively even though plaintiffwas admitted to Winthrop as Dr. Fradella s patient and

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she remained Dr. Fradella s patient throughout the course of her admission.

Malpractice is professional negligence and medical malpractice is the negligence

of a doctor" (PJI 2:150). Thus as a threshold matter, and prior to entertaining whether

plaintiff has established a prima facie case of liabiliy against the defendants Dr. Khalife and

Nassau Surgical , this Court must first determine whether said defendants owed a duty of

care to the plaintiff. Generally, whether a physician owed a duty of care to the plaintiff is

legal question , not a question of medical expertise (Koeppel v Park 228 AD2d 288; Sawh

v Schoen 215 AD2d 291). Consequently, expert affidavits are not necessary in moving

for summary judgment based upon lack of duty, since the duty owed by a consulting

physician is a question of law , not medicine.

In this case, plaintiff's three theories of negligence applicable to Dr. Khalife all

exceed the scope of any duty Dr. Khalife owed to the plaintiff.

Informed Consent: Under Public Health Law S2805(d)(1), " lack of informed consent"

is defined as "the failure of the person providing the professional treatment.. to disclose to

the patient such alternatives thereto and the reasonably foreseeable risks and benefits

involved as a reasonable medical.practitioner under similar circumstances would have

disclosed , in a manner permitting the patientto make a knowledgeable evaluation. " Where

as here , a patient is treated in a hospital by a private physician , the duty to obtain the

patient's informed consent rests with the private physician (Salandy v Bryk 55 AD3d 147;

Sita v Long Island Jewish-Hilside Medical Center 22 AD3d 743). Further, the referring

physician s receipt of an informed consent may satisfy a treating physician s obligation to

obtain informed consent where the treating physician failed to advise the patient of the

risks , benefit and alternatives to the treatment (Sangiuolo v Leventhal 132 Misc.2d 680

[* 12]

(Sup. Ct. New York 1986)). Inasmuch as the facts are undisputed in this case that Dr.

Khalife had no contact with and did not even know plaintiff's identity until Dr. Fradella

requested his assistance, and inasmuch as Dr. Fradella requested Dr. Khalife s assistance

only after plaintiff had been p,laced under anesthesia and she was therefore incapable of

receiving any information or giving consent , clearly, defendant did not owe the plaintiff any

duty to obtain her informed consent for the procedure.

Failure to Obtain Prior History and Failure to Act Post Operatively: (A)lthough

physicians owe a general duty of care to their patients , that duty may be limited to those

medical functions undertaken by the physician and relied upon by the patient"

(Wassermnan v Staten Island Radiological Associates 2 AD3d 713). In such cases

, "

it is

necessary...to consider the circumstances under which these physicians provided care to

plaintiff to determine if a duty existed" while also remaining cognizant that a "single

examination" by a physician does "not create a further duty on his part to personally

supervise" the plaintiff, nor does " it render him responsible" for the plaintiff's subsequent

care (Dombroski v Samaritan Hosp. 47 AD 3d 80; Arias v Flushing Hosp. Medical Center

300 AD2d 610). The evidence in this case is clear. Dr. Fradella made the decision to

operate on the patient. Dr. Fradella saw the patient before the surgery. Dr. Fradella did

the sonogram on her before the surgery. Dr. Fradella took her in for the surgery. Dr.

Khalife was consulted because the findings during the surgery were not what Dr. Fradella

expected and she could not proceed with the surgery safely. Dr. Khalife , with Dr. Fradella

assistance excised the cystic mass from the left side of plaintiffs abdomen but did not

remove it. Dr. Khalife then left the operating room and the remainder of the procedure was

[* 13]

performed by Drs. Fradella and Mondesir. Thus , in this case , where Dr. Khalife the

attending physician was consulted for a limited purpose - to "excise the cystic mass" from

the plaintiff's abdomen - it is plain that the scope of his duty as a medical practitioner was

limited (see e. , Dombroski v Samaritan Hospital, supra; Mosezhnik v Berenstein

AD3d 895; Wasserman v Staten Island Radiological Associates 2 AD 3d 713). A

physician s participation in surgery does not give rise to a duty to supervise or participate

in the patient's post operative care where the physician did not undertake to supervise the

case and the patient has a primary care physician (Bettencourt v Long Island College

Hosp. , Inc. 306 AD2d 425). In this case , since Dr. Khalife did not undertake a larger

medical function beyond assisting Dr. Fradella , in the middle of a procedure and at her

request, he wil not be charged with the wider duty of conducting an independent

investigation into plaintiff's general medical history, beyond the information provided by the

physician controlling plaintiff's care , Dr. Fradella. Moreover, Dr. Khalife s mere participation

in the surgery at issue did not create a further duty on his part to personally supervise or

participate in the plaintiff's postoperative medical care or treatment subsequent to his

limited participation.

Therefore , in light of defendants ' Dr. Khalife and Nassau Surgical' prima facie

showing of entitlement to judgment as a matter of law, the burden shifts to the plaintiff as

the party opposing the motion to produce evidentiary proof in admissible form sufficient to

establish the existence of material issues of fact requiring a trial (Alvarez v Prospect Hosp.

supra). Plaintiff has failed to advance any opposition to defendants prima facie showing

and therefore defendants Dr. Khalife and Nassau Surgical's motion to dismiss plaintiff'

medical malpractice claims as asserted them is granted.

[* 14]

Dr. Mondesir and Winthrop s Motion

As against Dr. Mondesir and Winthrop, plaintiff alleges that in performing the March

, 2008 surgical procedure, Dr. Mondesir failed to inter alia, properly and carefully

introduce trocars into plaintiff's abdomen , failed to timely and properly identify and preserve

the plaintiffs bowel and failed to timely and properly position the plaintiff during surgery.

In relation to the post operative care , plaintiff claims that Dr. Mondesir failed to review

plaintiff' s abnormal EKG, failed to determine the etiology of plaintiff's abnormal EKG and

T -Wave abnormality, failed to determine the etiology of the plaintiff's increasing abdominal

pain and failed to determine the etiology of plaintiffs hypotension prior to plaintiffs

discharge from Winthrop. As against the defendant Hospital , plaintiff's claims are

predicated upon theory of vicarious liabilty. Plaintiff alleges that the Hospital is also liable

under theories of negligent hiring, negligent retention and negligent supervision of the

defendant , Dr. Mondesir.

It is well settled that a hospital may not be held liable for injuries suffered by a patient

who is under the care of a private attending physician chosen by the patient where the

resident physicians and nurses employed by the hospital merely carry out the orders of the

private attending physician , unless the hospital staff commits " independent acts of

negligence or the attending physician s orders are contradicted by normal practice (Cerny

v Wiliams 32 AD 3d 881; see also Hil v St. Clare s Hosp. 67 NY2d 72 , 79; Toth v

Community Hasp. at Glen Cove 22 NY2d 255 , 265).

In a medical malpractice action, the moving defendant bears the burden of proving

the absence of any departure from good and accepted standards of medical practice , or

even in the presence of said departures that the plaintiff was injured thereby (Swezey v

[* 15]

Montague Rehab Pain Mgt. , P. 59 AD3d 431 , 433; Larsen v Loychusuk 55 AD3d

560). In pursuance of its prima facie burden of proof, the moving defendant is required to

address the factual allegations set forth in the plaintiffs ' bill of particulars with reference to

the moving defendant's alleged acts of negligence and the injuries suffered with competent

medical proof (Alvarez v Prospect Hasp. , supra; Winegrad v New York Univ. Med. Gtr.

supra). It is only after the movant has carried its prima facie burden that the nonmoving

party is required to submit competent proof in opposition forthe purpose of establishing the

presence of material issues of fact (ld.

Here , defendants , Dr. Mondesir and Winthrop, have failed to establish their prima

facie entitlement to judgment as a matter of law.

The crux of defendants ' argument is that Dr. Mondesir was not involved in the

surgery. Defendants maintain that at all times that Dr. Mondesir was at the operating table

Dr. Fradella supervised the assistance provided by Dr. Mondesir and that all actions taken

by Dr. Mondesir during the surgery were solely at the direction of the private attending

physician , Dr. Fradella. Defendants submit that there is nothing in the record that suggests

that Dr. Mondesir exercised any independent medical judgment while assisting Dr. Fradella.

Nor did Dr. Fradella s directions and medical judgment so greatly depart from normal

practice that Dr. Mondesir should have intervened. Defendant also maintain that as plaintiff

has failed to establish a prima facie case of medical malpractice liabilty against Dr.

Mondesir, any claims against Winthrop must also fail as a result.

In support of their motion , defendants submit inter alia the expert opinion of Gary

L. Mucciolo , M. , a physician board certified in the field of Obstetrics and Gynecology,

who opines , in pertinent part , as follows:

[* 16]

11.

*** ...

It is my opinion within a reasonable degree of medical certainty that Dr.Fradella , as the attending surgeon supervised and directed any actions takenby Dr. Mondesir during this phase of the surgery and that no acts and/oromission caused or contributed to the claimed bowel injury during this partof the procedure.

It is evident that Dr. Mondesir was not involved in the surgery during the timethat Dr. Khalife operated on the plaintiff along with Dr. Fradella. At all timesthat Dr. Mondesir was at the operating table Dr. Fradella supervised theassistance provided by Dr. Mondesir. Furthermore , all actions taken by Dr.Mondesir during the surgery were solely at the direction of the privateattending physician , Dr. Fradella. While Dr. Mondesir was assisting Dr.

Fradella both surgeons were able to visualize the images produced by thelaparoscopic camera on a monitor. There is no evidence that Dr. Mondesirused any cutting instruments. It is customary and the standard of care forresidents to assist in surgeries such as this , under the supervision of anattending physician and at her direction. Dr. Mondesir s participation as anassistant surgeon was within the accepted standard of medical care as sheacted only at the direction and under the supervision of the private attendingphysician , Dr. Fradella , who independently made all surgical decisions. I holdthis opinion to a reasonable degree of medical certainty.

Nothing in the records suggests that Dr. Mondesir exercised any independentmedical judgment while assisting Dr. Fradella. Nor did Dr. Fradelladirections and medical judgment so greatly depart from normal practice thatDr. Mondesir should have intervened. I hold this opinion to a reasonabledegree of medical certainty.

10. The sworn deposition testimony by Dr. Fradella also confirms that Dr.Fradella followed her private patient during the entire post operative period.Dr. Fradella saw and examined the plaintiff on each post operative day andpersonally discharged her patient on 3/7/08. Dr. Fradella testified that sheassumed responsibilty for the plaintiff's care throughout her admission up tothe time of discharge. The hospital records reflect that the plaintiff did nothave any signs , symptoms , clinical findings or complaints suggestive ofbowel perforation during the entire hospital admission...

It is my opinion within a reasonable degree of medical certainty that theplaintiff' s post operative course while a patient at (Winthrop) was notindicative of bowel perforation and there were no clinical findings thatrequired medical intervention. The records indicate that Dr. Fradella was fullyaware of the plaintiff's clinical picture and it was appropriate and within thestandards of accepted medical practice to discharge the plaintiff on 317.

the time of discharge the plaintiff had no complaints other than soreness and

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fatigue. As the private attending physician Dr. Fradella was charged withincoordinating and making decisions as to plaintiffs care and directed the staffat Winthrop who appropriately followed her Orders... It is my opinion within areasonable degree of medical certainty that there was no act and/or omissionby any (Winthrop) staff or Dr. Mondesir during the plaintiffs admission thatcaused or contributed to the claimed injuries... The staff at Winthrop properlyacted in consultation with and at the direction of Dr. Fradella. I hold thisopinion to a reasonable degree of medical certainty. At no time , during theMarch 5 , 2008 hospital admission , did any of the actions of Dr. Fradelladepart from the standard of care so as to require any of the Winthrop staff tointervene and question her judgment. I hold this opinion to a reasonabledegree fo medical certainty.

***

14. There is no evidence in the chart of any departure from any medical ornursing standard of care , on the part of Winthrop University Hospital , thatproximately caused the injured alleged by the Plaintiff in the Complaint andBill of Particulars. I hold this opinion to a reasonable degree of medicalcertainty.

15. Therefore , based on my review of the medical records , Bills of ParticularsDeposition transcripts and my many years of experience , it is my opinion , toa reasonable degree of medical certainty that Winthrop University Hospitalthrough its staff including Dr. Mondesir did not depart form good andaccepted nursing and/or medical practice. I hold this and all opinions statedherein to a reasonable degree of medical certainty.

Even when read and considered in totality, this Court finds that the defendants have

failed to sustain their prima facie burden.

Primarily, defendants Dr. Mondesir and Winthrop fail to offer any admissible

evidence that Dr. Mondesir did not exercise independent judgment or that he conformed

to the applicable standard of care of good medical practice. Although a resident who

assists a doctor during a medical procedure and follows all directions of that doctor while

not exercising any independent medical judgment cannot be held liable for malpractice , Dr.

Mondesir has failed to submit any evidence of such a factual situation in this case (Soto v

Andaz 8 AD 3d 470 , 471; Muniz v Katlowitz 49 AD3d 511 513). Indeed Dr. Fradella

testimony is silent as to whether Dr. Mondesir followed all directions or exercised

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independent judgment. The records themselves are , at best , ambiguous on the point since

it appears certain vital information , such as tachycardia and low blood pressure , appear

several times in Mondesir s notes without appearing in Dr. Fradella s notes.

Further, the expert affirmation of Dr. Gary Mucciolo falls short of establishing

defendants prima facie entitlement to judgment as a matter of law. Here , the plaintiff

alleged in her bill of particulars that in performing the March 5 , 2008 surgical procedure

Mondesir failed to properly and carefully introduce trocars into plaintiff's abdomen , failed

to timely and properly identify and preserve the plaintiff's bowel and failed to timely and

properly position the plaintiff during surgery. In relation to the post operative care , plaintiff

claims that Mondesir failed to review plaintiffs abnormal EKG , failed to determine the

etiology of plaintiff's abnormal EKG and T-Wave abnormality, failed to determine the

etiology of the plaintiff's increasing abdominal pain and failed to determine the etiology of

plaintiffs hypotension prior to plaintiffs discharge from Winthrop.

The defendants' expert' affirmation failed to address any and all of these

allegations , and his opinions were conclusory as to the allegations that the hospital and Dr.

Mondesir deviated from the accepted standard of care.

Dr. Mucciolo also fails to address the standard of care in a circumstance such as the

one presented in this case where the patient undergoes a laparoscopic procedure and it

is discovered that she had extensive adhesions involving the bowels which required lysing

prior to the continuation of the procedure. The failure by Dr. Mucciolo to address what the

standard of care would require under these circumstances renders his opinion insufficient

to make a prima facie showing of entitlement to judgment as a matter of law.

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Consequently, this Court is precluded from awarding summary judgment to Winthrop

and Dr. Mondesir (LaVecchia v Bilello 76 AD3d 548; Castro v New York City Health &

Hasps. Corp. 74 AD3d 1005; Vincini v. Inse/ 1 AD 3d 351).

Finally, while neither determinative nor dispositive on the issue of their prima facie

burden , this Court nevertheless notes that Dr. Mondesir fails to submit her own affidavit in

support of her instant motion for summary judgment attesting to the issue that she did not

exercise any independent judgment and that she simply followed Dr. Fradella s directions.

Therefore , this Court finds that the defendants Dr. Mondesir and Winthrop s failure

to make a prima facie showing of entitlement to judgment as a matter of law requires a

denial of their motion , regardless of the sufficiency of the opposing papers (Id.

TO:

UTE WOLFF LALLY , J.

- -

C .rtERE .Duff & Duf, Esq..

Attorneys for Plaintiff

1370 RXR Plaza , West Tower, 13 Floor W\ 01 'lUniondale, NY 11556

\.

QUN1'Harris Beach PLLC. . I4S$ \J C 'S Qff\Ce.Attorney for Defendants Michael E. Khalife , MD and Nassau Surgical

100 Wall Street , 23 Floor New York , NY 10005

Dated: March 30 , 2011

Bower & Lawrence , PCAttorneys for Defendants Winthrop University Hospital and Carlene Mondesir, MD261 Madison AvenueNew York , NY 10010

Mitchell J. Angel , PLLCAttorney for Defendant Francine D. Fradella , DO170 Old Country RoadMineola , NY 11501

fitzsimons-fradella , #2 #3/sumjudg

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